Exactly what is commercial surrogacy, and why is there always a “legal caution” surrounding it, particularly in India?
Many people looking to consider the option of surrogacy are made aware of this term and mistakenly believe it means compensating the surrogate mother, without knowing the implications of it. The laws have changed, and the information available on the Internet may also be outdated.
The purpose of this blog is to inform readers on what commercial surrogacy entails, how it occurs, its contrast with altruistic surrogacy, its legal scenario in India, risks and legal consequences faced when one involves oneself in commercial surrogacy, as well as the ethical options available in the present scenario.
Understanding Commercial Surrogacy
Commercial surrogacy is the type of surrogacy wherein the surrogate mother is given financial compensation or rewards to conceive and bear the baby of the intended parents.
Under this system, surrogacy can become a lucrative transaction with the involvement of contracts, agents, and other intermediaries.
The most significant factor that defines commercial surrogacy is the involvement of financial gains or profit that are directly related to the pregnancy.
How Commercial Surrogacy Works?
Commercial surrogacy occurs where a mother openly undertakes to carry a pregnancy in return for a payment.
This often includes assisted reproductive technologies like in vitro fertilisation; legal contracts in which the surrogate's payment is specified; and in some cases, the involvement of agencies or brokers as intermediaries.
Although the process appears similar comparing with other forms, the financial transaction makes the process distinct with regard to the commercial surrogacy model.
Commercial Surrogacy vs Altruistic Surrogacy
Commercial surrogacy and altruistic surrogacy have divergent characteristics as well as intentions. Commercial surrogacy involves the surrogate mother having to be compensated through an act that amounts to profit-making for her act of surrogate motherhood.
Unlike that, altruistic surrogacy enables a surrogate mother to become pregnant without gaining financial benefits, whereby the intended parents only cover the costs incurred by the mother on medical bills and pregnancy.
The difference is the core reason behind the restriction on commercial surrogacy in the country, while altruistic surrogacy is allowed under regulations.
Legal Status of Commercial Surrogacy in India
Commercial surrogacy is illegal in India. Indian law only permits altruistic surrogacy under specific conditions.
The banned forms include any payment or profit for the surrogate, except for legitimate expenditure, advertising, brokerage, or intermediary services in relation to commercial surrogacy arrangements.
Such a legal principle has been put in place to ensure that surrogacy remains an ethical practice in medicine and not a lucrative business-oriented practice.
Why Commercial Surrogacy Was Banned in India?
Commercial surrogacy was made illegal in India due to various ethical issues involved. One of the main issues was the exploitation of economically disadvantaged women in society. They were being forced to opt for surrogacy due to financial benefits. Also alarming was the lack of informed consent and the rights of the parents.
The ban was put in place to maintain the dignity of women, practice medical ethics, and secure the rights of children resulting from surrogate motherhood.
Risks and Challenges Associated With Commercial Surrogacy
There are inherent risks or challenges with commercial surrogacy that are often encountered, especially without a legal framework, among them:
- Risk of exploitation and pressure from surrogate mothers
- Legal Disputes in Parentage and Custody Cases
- Lack of Medical Accountability and Continuity of Care
- Emotional and psychological stress on all parties involved
- Difficulty in obtaining legal recognition for the child
These risks also explain the perceived danger involved in commercial surrogacy, which makes the practice unethical in India.
Penalties for Commercial Surrogacy in India
Indian law clearly imposes stringent punishments for those who are involved in commercial surrogacy activities. Parents intending to conceive, clinics, and brokers or intermediaries who are involved in commercial surrogacy activities face heavy fines and may even be imprisoned. The operation and running of undocumented surrogacy centre and brokering or advertising such activities attract punishments.
This penalty is aimed at discouraging illegal practices in the field and promoting compliance with ethical surrogacy laws.
Commercial Surrogacy in Other Countries
The law applicable to surrogate mothers also differs. While some nations allow commercial surrogacy with strict regulation, in other nations, the practice is prohibited.
Given that surrogacy involving other countries has various citizenship-related issues and complex laws, individuals who wish to become parents must exercise extreme care before considering any alternative measures available in other countries.
Ethical Alternatives to Commercial Surrogacy
For an individual or a couple in need of a surrogate mother, altruistic surrogacy provides the only ethical and legal option, and that is the case in India, too. Altruistic Surrogacy: Medical Necessity and Consent
Engaging on the lawful path can avoid the legal problems that can occur while maintaining the transparent process that makes surrogacy a legitimate path.
Conclusion
Commercial surrogacy can be defined as an arrangement in which some kind of compensation or profit changes hands in exchange for a surrogate pregnancy, and this is an offence in India. The law prohibiting commercial surrogacy was established to protect against exploitation and support women’s rights activists for the practice of ethical medicine in the country.
Though commercial surrogacy may be allowed in some countries, it has several legal, ethical, and emotional risks associated with it, as mentioned above. For people planning to go into surrogacy, in the case of India, it’s advisable to have proper knowledge of the legal status regarding surrogacy, as altruistic surrogacy would be a good substitute
Consulting an authorized surrogacy centre can also aid in getting proper medical and legal guidance to make the surrogacy journey safe, transparent, and responsible.
